Hanuman Tea Company and Another vs Bajrang Lal and Another

R.R. Yadav, J.—The present appeal is filed against the judgment and decree passed by the learned Additional District Judge No.6, Jaipur City, Jaipur dated 29.8.1990 setting aside the judgment and decree passed by the learned trial court dated 16.12.1980 in Civil Suit No. 164/1972 and dismissed the suit for recovery of Rs. 4,253.50 for the price of the tea including interest thereon which was decree by the trial court.

The brief facts necessary for disposal of the instant second appeal arc that the plaintiff-appellants filed a civil suit against the defendant-respondents on 18.3.1972 alleging therein that the defendants purchased tea from them from 10.1.68 to 7.1.69 and from24.5.69to4.9.69of a value of Rs. 2,759.10 and Rs. 8,258/- respectively on credit bills and paid Rs.2,462.54 and Rs.5,286.56 respectively to the plaintiffs towards the said credit bills. According to the averments made in the plaint, Rs.3,272.50 including bank commission amounting to Rs.4.50 which was paid by the plaintiff-appellants remained outstanding against the defendants towards the price of tea, and according to the contract, the defendants were liable to pay interest at the rate of 12% per annum amounting to Rs.991/- on the date of said suit.

The defendant-respondents filed the written statement on 15.1.1973 and contested the suit denying the averments made in the plaint.

On the pleadings of the parties, learned trial court framed as many as six issues and last issue was relating to relief. Issue No.4 was sub-divided in 3 issues i.e. issue No.4, 4A and 4B. The learned trial court after giving opportunity to both the parties to adduce their oral and documentary evidence in support of their respective claims decreed the suit on 16.12.1980.

Aggrieved against the judgment and decree dated 16.12.1980. the defendant-respondents filed appeal before the first appellate court which was allowed on 29.8.1990 and suit filed by the plaintiff-appellants was dismissed in toto as stated hereinabove in the preceding paragraph of this judgment.

Aggrieved against the judgment and decree dated 29.8.1990 passed by the first appellate Court, the plaintiff-appellants have filed the instant second appeal which was admitted on 7.11.1994 on the following substantial questions of law:-

"Whether the lower appellate court could have dismissed the suit after recording a finding that the firm was a registered partnership firm?

Could the suit be dismissed on the ground that names of the partners were not disclosed so, the partnership will be deemed to be unregistered?

The aforesaid two substantial questions of law formulated on the date of admission on 7.11.1994 are inter - linked, therefore, I propose to deal them together.

It is urged by the learned counsel for the plaintiff-appellants that from perusal of paragraph 1 of the plaint and paragraph 1 of written statement filed by the defendant-respondents, it is evident that the allegations of plaintiff-appellants regarding registration of partnership firm is not denied by the defendant-respondents. It is apparent from perusal of averments made in the plaint as well as in written statement that the averments made in the plaint regarding the fact in issue that the firm is registered firm is not denied by the defendants: According to the learned counsel for the plaintiff-appellants, the evasive reply given by defendant-respondents in their written statement shall be deemed to be their admission of para I of the plaint within the meaning of Order 8 Rule 3, 4 and 5 of Code of Civil Procedure.

The aforesaid argument advanced by the learned counsel for the plaintiff-appellants is controverted by the learned counsel appearing on behalf of defendant-respondents Mr. Naruka. It is submitted by Mr.Narukathat the reply given in paragraph 1 of the written statement cannot said to be evasive reply. It is submitted by Mr.Naruka that true import of averments made in paragraph 1 of the written statement leads towards a conclusion that defendant-respondents intended to convey that regarding registration to the firm, they should be put to strict proof of it. Therefore, the correct construction of paragraph 1 of the written statement is that the plaintiff-appellants were required to be put to strict proof of the fact that the firm is registered in accordance with law.

Before entering into the merit of the case on hand, learned counsel for the plaintiff-appellants has invited my attention to an application moved under Order 41 Rule 27 of C.P.C. for bringing on record a certified copy of the extract of the register obtained from the office of Registrar of Finns, Rajasthan, Jaipur relating to entry made disclosing the registration number of the firm and the names of the partners together with their addresses in the register maintained U/s. 67 of the Indian Partnership Act, 1 932. The ground taken in the application moved under Order 41 Rule 27 by the plaintiff-appellants arc that the document regarding said entry in the names of partners was not produced by the plaintiffs in the trial court due to the reason that the defendant in their written statement did not deny the fact of registration which amounted an admission under Order 8 rule 5 of C.P.C. Under these circumstances, the learned trial court did not require the said document and the suit was decreed. Another reason to allow the plaintiff-appellants to adduce aforesaid public document as additional evidence in appeal under Order 41 rule 27 C.P.C. is disclosed that it is apparent from perusal of record of trial court that defendants have not demanded names of the partners of the firm in writing as envisaged under Order 30 Rule 2 C.P.C. Since the defendants did not demand in writing the declaration of the names of all the partners of the partnership firm, therefore, the trial court has not stayed the proceedings in the suit within the meaning of sub-rule (2) of Rule 2 of Order 30 C.P.C. and adjudicated the rights and liabilities of the parties by decreeing the suit after analytical discussion of the evidence adduced by both the parties.

For the reasons stated above, I am satisfied that plaintiff-appellants succeeded to establish that this document is required to be admitted as additional evidence within the meaning of Order 41 rule 27(1)(aa) as they could not after exercise of due diligence produced the said public document at the time when the decree appealed against them was passed and also under Order 41 Rule 27(1)(b) as according to me this Court requires aforesaid document for pronouncement of the present judgment, therefore, the application is allowed and the aforesaid document is taken on record as additional evidence.

I have given my thoughtful consideration to the arguments raised by learned counsel for the parties. I am of the view that there is substance in the submission made by Mr. Naruka, if paragraph I of the written statement is property construed, it leads towards an inference that plaintiff-appellants were required to put to strict proof of the fact that the firm is registered U/s. 59 of the Indian Partnership Act; 1932.

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(2) No suits to enforce a right arising from a contract shall be instituted in any court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.

A composite reading of Order 30 Rule 1, 2 and 3 quoted hereinabove, as well as, sub-section (2) of Section 69 of the Indian Partnership Act, 1932, it is inferable that on the date of filing of the suit at least two conditions are required to be satisfied within the meaning of sub-section (2) of Section 69. Firstly that the firm must be registered and secondly that the persons suing or being sued have been shown in the register of the firms as partners in the firm. It is further to be noticed that consequence for non-compliance of disclosure of the names of all the partners are enumerated under sub-rule (2) and sub-rule (3) of Rule 2 of Order 30 wherein if the plaintiffs or their pleader fails to comply with any demand made under sub-rule (1), all proceedings in the suit may, upon an application for that purpose, be stayed. In the present case, it is conceded by the learned counsel for the parties that no such demand was made by the defendants in writing for declaration of the names and places of the residence of all the partners constituting the firm on whose behalf the suit was instituted. It is to be noticed that in event of making a demand in writing by defendants for disclosures of the names of all partners and places of their residence and failure of plaintiff to do so then, consequence would have been that the proceedings might have been stayed by the Court and the proceeding in the suit would have been initiated when the names of the partners are declared in the manner referred in sub-rule (1) the suit would have proceed in the same manner and the same consequences in all respects would have followed as if they have been named as plaintiffs in the plaint as contemplated under sub-rule (3) of Rule 2 of Order 30 of C.P.C.

In the present case, indisputedly neither the defendant-respondents demanded in writing the declaration of the names of all partners with their residences nor trial court stayed the suit as envisages under sub-rule (2) of Rule 2 of Order 30 of C.P.C. It is true that now the plaintiff-appellants have filed the certificate of registration of firm disclosing the names of all partners with their respective residences in additional evidence under Order 41 Rule 27 C.P.C. which is allowed, therefore, the consequences enumerated under sub-rule (3) of Rule 2 of Order 30 C.P.C. will now follow and names of all the partners disclosed in additional evidence shall be entered in the decree sheet.

When the learned counsel for defendant-respondents Mr. Naruka was confronted with the aforesaid legal problem, he submitted that the learned first appellate court has committed no error in dismissing the suit in view of the decision rendered by Division Bench of this Court in case of M/s. Sohanlal Basant Kumar vs. Umrao Mal Chopra reported in RLW 1985 page 614. The aforesaid argument of Mr. Naruka is not acceptable for the reason that in the present case, the plaintiff-appellants have moved an application under Order 41, Rule 27 of C.P.C. for bringing on record a copy of entry in the register U/s. 67 of the Indian Partnership Act, 1932 from the office of Registrar of Firms, Rajasthan, Jaipur disclosing the names of all the partners of the firm and their respective addresses who were partners at the time of the accruing of the cause of action within the meaning of sub-rule (1) of Rule 1 of Order 30 of C.P.C. The names of the partners disclosed in the copy of register of partnership firm maintained in the office of Registrar of Firms, Rajasthan, Jaipur indicates that on the date of institution of the suit, Smt.Rukmani Devi Sharma, Shri Vishnu Kumar Sharma and Smt. Shakuntla Devi Sharma were the partners of the firm. The aforesaid application under Order 41 Rule 27 C PC. has already been allowed before entering into the merit of the case, hence, now the facts of the decision rendered in case of M/s. Sohanlal Basant Kumar (supra) are not applicable to the facts of the present case.

I respectfully concur with the preposition of law propounded by learned Judges constituting Division Bench in case of M/s. Sohanlal Basant Kumar (supra), but, in my considered opinion, the ratio of the aforesaid decision is not extendable to the facts and circumstances of the present case after allowing the additional evidence under Order 41 Rule 27 C.P.C. bring on record certificate of registration of firms disclosing the names of all partners of the firm and their respect iveresidences.

As a result of aforementioned discussion made hereinabove, both the questions formulated on the date of admission are answered accordingly,

Upshot of the aforesaid discussion is that the judgment and decree passed by the learned first appellate court is hereby set aside and the present appeal is allowed. The judgment and decree passed by learned trial court is restored. Costs are made easy.